IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
CASE NO: CT02568ADJ2026
In the matter between:
THAMSANQA WISEMAN MANYATHI APPLICANT
(Identity Number: XXXXXX XXX XXXX)
and
SPHEPHILE THULANI GUMEDE RESPONDENT
(Identity Number: XXXXXX XXX XXXX)
Presiding Member: Dr. Minah Tong-Mongalo
26 March 2026
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DECISION (Default)
______________________________________________________________________
A INTRODUCTION
1. This matter concerns an application brought in terms of section 71(8) of the
Companies Act 71 of 2008 ("the Act") for the removal of the Respondent as a
director of Just Cool Solutions (Pty) Ltd, registration number 2015/175122/07
("the Company").
2. The Applicant initiated these proceedings by filing Form CTR142, accompanied
by a founding affidavit setting out the factual matrix and legal grounds upon
which the relief is sought.
3. The Applicant now seeks a default order under Regulation 153 of the Companies
Regulations, 2011 ("the Regulations"), claiming that the Respondent failed to
provide an answering affidavit within the timeframe specified.
B JURISDICTION
4. It is common cause that the Company has two directors only, namely the
Applicant and the Respondent.
5. In terms of section 71(8) of the Act, where a company has fewer than three
directors, any application for the removal of a director must be determined by the
Companies Tribunal.
6. This Tribunal accordingly has the requisite jurisdiction to adjudicate the matter.
C SERVICE AND DEFAULT
7. The CTR142 application was duly filed on 26 January 2026.
8. The Applicant relies on a proof of service to establish that the application was
served on the Respondent on 27 January 2026.
9. In terms of Regulation 143(1), a respondent who has been served with an
initiating document is afforded 20 business days within which to file an answering
affidavit.
10. Regulation 153(1) empowers the Tribunal to grant a default order only where it is
satisfied that the application was adequately served and that the respondent is in
default.
11. The Applicant submitted proof that the Respondent was served via email and
courier. In relation to the alleged service by email, no read receipt or delivery
report is attached to the papers.
12. There is furthermore no email correspondence or other objective evidence before
the Tribunal showing that the email address used for service is indeed an email
address of the Respondent or one ordinarily used by him.
13. In relation to the alleged courier service, the proof of service does not stipulate
the address to which the documents were dispatched.
14. These deficiencies prevent the Tribunal from verifying whether the initiating
documents reached the Respondent. The Respondent’s failure to file an
answering affidavit cannot, in these circumstances, be treated as a default for
purposes of Regulation 153.
D ANALYSIS
15. Proper service is not a mere formality. Regulation 142(2) requires the applicant to
serve the application and supporting affidavit on each respondent, while
Regulation 153(2)(b) permits the Tribunal to grant a default order only if it is
satisfied that the notice or application was adequately served.
16. In TC Cooling CC v TC Cooling SA (Pty) Ltd
1, the Tribunal held that email service
was inadequate because the email addresses used did not include the
respondent director’s email address reflected elsewhere in the papers, and there
was no other proof that the respondent received notice. Considering the
insufficient proof of service, the Tribunal refused default relief and emphasised
that the merits could not be reached while service remained uncertain.
17. “The procedural aspect of the rule of law is generally expressed in the maxim
audi alteram partem (the audi principle). This maxim provides that no one should
be condemned unheard. It reflects a fundamental principle of fairness that
underlies or ought to underlie any just and credible legal order.”2
18. On the papers before me, the Applicant has not shown that the email address
used was one through which the Respondent could reliably be reached, nor has
1 (CT00480ADJ2020) [2021] COMPTRI 24 paras 2.3-2.4, 4.1-4.3 and 5.2-5.3.
1 (CT00480ADJ2020) [2021] COMPTRI 24 paras 2.3-2.4, 4.1-4.3 and 5.2-5.3.
2 Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) para 187.
the Applicant shown where the couriered documents were delivered or to whom
they were handed.
E CONCLUSION
19. Although the Tribunal has jurisdiction to entertain an application of this nature
under section 71(8) of the Act, the Applicant has not satisfied the Tribunal that
the Respondent was properly served.
20. The application for a default order accordingly cannot succeed and falls to be
dismissed. This dismissal is not a determination of the merits of the removal
application.
21. The Applicant is not precluded from re-enrolling the matter upon proper service of
the initiating documents on the Respondent and the filing of satisfactory proof
thereof, including proof of the service address and the identity of the recipient in
the case of courier service, or objective confirmation that the email address used
belongs to or is ordinarily used by the Respondent.
F ORDER
22. The application for a default order is hereby dismissed.
23. The dismissal of this application is without prejudice to the Applicant's right to re-
enroll the matter after proper service and the filing of satisfactory proof thereof.
24. There is no order as to costs.
_________________
Dr. Minah Tong-
Mongalo